Superficial Reform?

During recent years, local, state, and federal policymakers in the United States have begun to pay more attention to the critical problem of effectively integrating the nation’s ever-rising army of ex-prisoners back into “the free world.” The “challenges of prisoner reentry,” which disproportionately impact black and non-white populations, have become a source of significantly intensified policy focus. As the New York Times recently reported, over half of the “more than 600,000 prisoners released from the nation’s prison’s each year” will return to the nightmare of incarceration. As the Times article asserts, “prisoner reentry” has become a positive “buzzword on the lips of politicians from coast to coast.” [1]

The term has gained popularity even among typically rehabilitation-unfriendly Republican politicians after the nation’s arch-reactionary President embraced “second chance” initiatives for ex-inmates during his 2004 State of the Union Address. It seems that many in the US are starting to acknowledge the terrible price imposed on American life by the realities of mass incarceration and mass recidivism. Measures and programs targeting the vicious circle of racially disparate mass incarceration are emerg-ing at greater scales and with rising frequency. Many of these programs work at the back end of the criminal justice system, stepping in only after people experience life in prison.

The contemporary countertrend toward meaningful inmate reentry or repatriation accurately reflects public sentiments. It is widely supported by a U.S. citizenry that has begun to move away from blind support for purely punitive “get tough on crime” and “lock-em-up” approaches to crime. Support is moving towards strategies that “get smart on crime,” provide meaningful alternatives to mass incarceration, and reduce the endemic recidivism that does so much to feed the expensive prison beast. It is not at all certain, however, that the development of this welcome and long overdue countertrend can produce the lasting and systemic change required to meaningfully advance the successful reintegration of ex-prisoners into the framework of American society. New crime waves related to increasing poverty, economic decline, and the persistent hyper-segregation of the urban poor always threaten to revive political demands for a renewed police-state crackdown on targeted urban populations. At the same time, advocates for new initiatives promoting inmate rehabilitation and reentry need to be aware of the unintended consequences of acting in too limited a fashion. There are potential dangers behind their efforts to take swift advantage of the newly favorable environment for their agenda with quick and easy policy victories. As leading national prisoner reentry expert Jeremy Travis warns at the end of his recent study But They All Come Back: Facing the Challenges of Prisoner Reentry (Washington D.C.: Urban Institute Press, 2005):

The risk at this juncture is the allure of success. Implementing a new program, completing a new interagency memorandum of understanding, and lifting a barrier to ex-offender employment should all be celebrated, but they are merely drops in the bucket. In this era of intellectual ferment, overdue awareness, political support, and public understanding, we have the opportunity to understand the magnitude of the phenomenon, develop new ideas, and translate these ideas from concepts to reality. We must not confuse superficial reforms with profound changes.

Unless this generation squarely faces the challenges of reentry and pursues an agenda of deep and lasting reforms, the goal of prisoner reintegration will escape our grasp.

The danger is not just that limited and narrow reforms will fail to meaningfully tackle the imposing barriers to reentry faced by ex-offenders. Another and related hazard is that restricted and superficial policy changes will be sold and understood as comprehensive efforts, thereby discrediting the movement for such efforts once the limited consequences of minor changes become apparent. The passage of reforms that only scratch the surface of the overall mountain of injustice become part of the problem, giving change opponents false reason to claim that exhaustive efforts to help disadvantaged populations make no difference or even make things worse.

Something along those lines may currently be taking place in Chicago and Illinois. In the Fall of 2002, I published a study documenting the remarkable extent to which city, county, and state authorities were exacerbating the social and economic disadvantage experienced by blacks. I focused on how these authorities are selectively saddling a wildly disproportionate number of blacks with prison histories and the lifelong mark of a criminal record. Among my findings: (1) there were nearly 20,000 more black males in the Illinois state prison system than enrolled in the state’s public universities in the 2001-2002 school year; (2) the Chicago black male ex-felons were equivalent in number to 42 percent of the area’s black male workforce; (3) ten very predominantly black Chicago zip codes received 25 percent of Illinois prisoners released in the years 2000, 2001, and 2002; (4) the chance of securing legitimate employment decreases significantly with prison time and ex-prisoners suffer a lifetime “wage penalty” (earnings reduction) as high as 30 percent.

The study, titled The Vicious Circle: Race, Prison, Community and Jobs (Chicago Urban League, 2002) became part of the arsenal used by legislators to pass two state bills meant to ease ex-offender employment barriers in Illinois. The first bill was sponsored by the progressive Chicago-based state Senator Constance Howard, and called the Ex-offender Expungement and Sealing Act, 2003. It permits the sealing (from review by employers and the public) of criminal records for Illinois ex-prisoners, four years after their release, who have been convicted of nonviolent misdemeanors and certain low-level Class 4 felonies like minor drug possession and prostitution. The act also permits the expungement (the actual destruction) of all records, with 2 to 3 year waiting periods depending on the offense, for a small number of minor criminal cases, including arrests that did not result in a conviction and first-time possession of marijuana. The second bill, sponsored by then state Senator Barack Obama mandated the issuing of Certificates of Relief from Disability [CRD] (by the Illinois Department of Corrections’ Prisoner Review Board) to certain categories of the ex-offender population. Modeled on a much stronger law in New York, crd originally permitted a first offender who had been convicted of no more than one non-violent felony to apply to the court or the Prisoner Review Board to receive a Certificate. The certificate purportedly entitles someone to not be denied of an occupational or professional license in fifteen (subsequently expanded to twenty-eight) specified and mostly skilled fields because of a previous conviction.

In a recent program evaluation conducted for the progressive Chicago-based advocacy organization Protestants for the Common Good (PCG), it was made clear that all but a small portion of current Illinois prison inmates, probably no more than five percent, are ineligible for records sealing, much less expungement, under currently existing state legislation. The legislation applies to a slightly larger share of the ex-prisoner population since drug and class 4 felons serve considerably shorter sentences than the general prison population and are therefore more prevalent among the ex-prisoner than among the current prison population. It doesn’t help that, as the New York Times recently reported in a front-page article titled “Expunged Criminal Records Live to Tell Tales” (October 17, 2006) employers enjoy widespread access to private criminal history databases that commonly omit expungements.

The CRD (Obama) legislation, subsequently expanded to include second-time nonviolent offenders, may cast a wider net over the prisoner and ex-offender community. However, given the remarkable recidivism that has characterized the state and nation’s inmate population over recent decades, as well as the large number and percentage of inmates that are still serving time for violent offenses, the margin of difference may not be terribly great. The CRD bill does nothing about the persistently high de facto barriers to ex-offender employment in Illinois. It contains no capacity to compel licensure, much less actual employment, of qualified ex-offender applicants. Moreover, it covers only a very small percentage of mostly skilled occupations that are largely beyond the reach of the ex-offender population regardless of explicit and/or de facto barriers to the training and hiring of people with criminal records. According to the best recent estimates, nearly a third of prisoners in the US are not working when arrested, a jobless rate far beyond that of the population as a whole. Nearly half (46 percent) of prisoners have never held a job longer than two years. Prisoners are more than twice as likely as low-wage male workers to be high school dropouts: nearly 60 percent versus 30 percent.A third of low-wage male workers have either a college degree or some college or vocational education, but only 7 percent of prisoners possess such qualifications. [2] The conclusions of a recent major pcg test project seeking to evaluate the crd bill’s outcomes and relevance are not surprising. Pcg finds that the legislation, “while well-intended,” has “very limited applicability as currently drafted. The number of ex-offenders” who can be assisted in any meaningful way “is small indeed.”

Insiders tell me that the crd legislation was deliberately watered down under the influence of powerful conservative players, thereby enabling the centrist Obama to avoid an unpleasant “floor fight.” These conservative players included the leading corporate-neoliberal downtown organization Metropolis 2020 and the heavily state-prison-affiliated Safer Foundation. Other key obstacles to more progressive legislation are reactionary downstate legislators who enjoy the fiscal and legislative windfalls accruing to their districts from racially disparate mass incarceration and perpetual black inmate recycling and warehousing. Meanwhile, the cause of ex-offender/ex-prisoner repatriation requires considerably stronger policy medicine than either bill provides. Travis’ warning about “superficial reform” is richly appropriate for the legislation that has followed in the wake of The Vicious Circle. Still there is some good news. PCG and other progressive groups in Chicago and Illinois are currently working on legislation that will (among other things) advance ex-offenders for legitimate anti-discrimination protection under the state’s Human Rights Law.